Justices reverse themselves and appeals court to rule that to sell drugs you have to first possess them

Enis John Cheramie figured he'd finally caught a break, when the prosecution's expert on selling street drugs hidden in spray cans failed to show up to testify that Cheramie intended to sell the 42 grams of meth cops found hidden in the bottom of the can after they pulled him over for an unrelated traffic stop in June of 2005 in Tucson.

But then the prosecution dropped the charge he was trying to sell the drugs and at the last minute slipped in the charge of drug possession.

Not fair -- argued Cheramie's lawyers when they spoke to the Arizona Supreme Court earlier this year at a special session held in the Payson High School auditorium. The court should throw out that charge because the prosecution never proved that the can contained a "useable" quantity of drugs -- something they would have had to prove if they had charged him with "possession" in the first place.

Sounded almost plausible, in the hands of a smooth talking lawyer.

The appeals court bought the argument on a split vote.

And the Supreme Court at least seemed interested, especially since prosecutors had earlier specifically fought to not have to fool with the "useable quantity" argument when prosecuting possession for sale cases.

Sorry Cheramie: No joy there.

After pondering the issue for some two months, the state Supreme Court has now ruled that simple possession of drugs counts as a "lesser included charge," and therefore prosecutors are free to downshift to the lower charge if they decide they can't prove possession with the intent to sell after all.

The Supreme Court's decision decisively closed a loophole in the drug laws -- and provided an example of methodical legal logic.

Cheramie's slim hope arose from a sometimes convoluted sequence of previous legal opinions mostly having to do with what prosecutors had to prove when it came time to convict someone of drug possession.

Several key cases involved an attempt to charge people with possession of illegal drugs based on the whiff of a residue on cotton swabs, or syringes or Q-tips. In those earlier cases, the high court had ruled that prosecutors had to prove someone had a enough of the drug to actually use, otherwise they had to stick to proving they had illegal drug paraphernalia -- which came with a less penalty.

So Cheramie's lawyers invoked those previous cases and pointed out that the prosecutors hadn't addressed the specific questions of whether the meth in the can was a useable amount.

No way, ruled the court.

The opinion upholding Cheramie's conviction concluded that the whole purpose of the "useable" amount standards was intended to make sure that someone wouldn't get convicted for possessing drugs they didn't even know they had on them. For instance, what if someone left cotton balls with cocaine residue at your apartment or the back of your car and you didn't even know it was there. The "useable quantity" standard was therefore intended to protect people from being charged unless they knew they they actually possessed the drugs in question.

Subsequently, the legislature amended the drug statutes to make it clear that people have to "knowingly" possesses to be convicted.

But in the meantime, previous court cases had clouded the issue, when in another case the state supreme court had upheld instructions to the jury in a lower court case that explained that the concept of a "useable quantity" was a required "element" of finding someone guilty of drug possession.

"We misspoke," said the high court in its ruling on Cheramie's case. "To the extent that language in DeRosier suggests that a ‘useable quantity' is a required ‘element' of the possession offense, we disapprove it."

Instead, reasoned the court, "a ‘useable quantity' is neither an element of the possession offense nor necessary to sustain a conviction for it. Rather, it is simply evidence from which the factfinder (jury or judge) may infer intent.

The court concluded, "the statute now expressly requires a knowing mental state, and establishing a ‘useable quantity' remains an effective way."